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Jack Korngold — 1st Amendment: Freedom of Speech Clause

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First Amendment — Freedom of Speech Clause 

“Congress shall make no law . . .  abridging the freedom of speech, or of the press.” 

The concept of free speech per the First Amendment is a critical principle introduced in the Bill of Rights in the Constitution. The historical context for this clause is rooted in the American experience with the oppressive government of the British Empire. Indeed, the Bill of Rights was added to the Constitution to satisfy the concerns of the Anti-Federalists to protect the rights of individuals from the power of the central government. Even before the Revolution, journalist John Peter Zenger was prosecuted by the colonial government of Massachusetts for printing unpopular truths about the Governor.

This prosecution reflected a suppression of free speech, which the colonists believed violated their inalienable rights. The common interpretation of free speech rights has been the duty to protect both an individual’s and groups’ ability to express themselves from government intervention across various mediums, including speech, print and online forums. This protection is quite broad and encompasses a variety of beliefs, and includes the protection of opinions that many Americans might find distasteful or offensive.

Even the burning of the American Flag as a form of political speech was protected by the Supreme Court as demonstrated in the ruling of the Texas vs. Johnson case in 1989. The broad interpretation of free speech rights is seen as necessary for the preservation of our democracy. A central debate about this Constitutional right is how restrictive our interpretation should be in its protection. One view is that free speech should be limited for national security purposes — in the Schenck v. United States case, the Supreme Court read the First Amendment in a restricted way so that people could not criticize the government in a time of war and argued that if there was “clear and present danger” to the country, then the speech could be restricted. In contrast, in the 1969 Tinker v. Des Moines Independent Community School District case, the court was less restrictive and ruled that high school students could protest the Vietnam War and that teachers could not stop the students from showing their opposition.

This concept of free speech in the First Amendment is clearly an example of an “inalienable right” that earlier thinkers, such as John Locke, thought must be guaranteed by a government based on the Social Contract. This right also reflects Rousseau’s view of the General Will as expressed in his conception of the Social Contract. With respect to how restrictive our interpretation should be, it would be necessary to have high standards for what constitutes a “clear and present danger” to the country as highlighted by the Schenck case.

The standards for enforcement must be strict, otherwise governments could unjustly suppress opposing points of view that represent no real threat to the country, but that interfere with an Administration’s political agenda. Some have also argued for the possibility of amending the language of this clause to remove the protections for “hate speech.” My proposal is that hate speech be more narrowly defined in the Amendment by words or images that incite or provoke violence or harm against a particular group purely because of their identity. Regardless of differences of opinion, the Free Speech clause of the First Amendment is a foundational element of American society, even though we might not always agree on how it is to be interpreted.

 

Bibliography

Vile, John R. “John Peter Zenger.” In The First Amendment Encyclopedia, edited by Middle Tennessee State University. Middle Tennessee State University, 2009. Last modified 2009. Accessed June 2, 2023. https://www.mtsu.edu/first-amendment/article/1235/john-peter-zenger.

 

There was no information on John Peter Zenger in the Oyez Archive, and so, I cited an outside source. All of the other cases however, are from the Oyez Archive.

Dean Gans – 1st Amendment

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The Constitution was ratified in 1788 and nearly 3 years after, the first amendment was passed. One of the provisions within the First Amendment was the crucial clause declaring that “Congress shall make no law abridging the freedom of speech.” This addition to the Constitution was influenced by major Enlightenment principles. Many thinkers of the Enlightenment, like John Locke,  strongly believed that having freedom of speech without infringement of the government would further develop society because without interference from the government social progression would occur because of society being able to openly debate over social injustices.

Then, because of their democratic governmental system, they would be able to implement the outcomes of these debates into the government. The Freedom of speech clause could be seen as responding to their previous rulers Britain. Because of different taxation and America not receiving representation, they felt their government was flawed but they were heavily restricted from advocating those opinions By heavily restricting the government from being able to interfere with criticism toward the government, the framers of the Constitution could have been trying to protect America’s government from the same corruption the British monarchy had. 

The freedom of speech clause is commonly interpreted as allowing speech unless it incites or influences imminent violence, preventing the government from restricting anyone’s speech. Only the government is prohibited from denying freedom of speech. In certain circumstances, such as with private employers or principals, someone may be terminated or expelled due to their speech if there is a valid reason. Additionally, speech extends beyond verbal communication and includes signs, calls, or writings on various mediums, including online platforms. Overall, freedom of speech in the constitution reflects the essential principle of individuals expressing themselves without censorship or repression, serving as a crucial element of democratic governance, individual autonomy, and the protection of human rights.

The interpretation of the freedom of speech clause varies, with ongoing debates regarding the extent of government restrictions. Some scholars argue that the government should not limit speech unless it poses an immediate and evident danger, while others believe that while political speech should be unrestricted, the government can intervene if speech potentially incites danger, spreads misinformation, or harms the country’s reputation. For example, scholars such as Catherine MacKinnon, Jeremy Waldron, and Richard Delgado strongly believe that hate speech is violating people’s natural rights. They argue that although it is less direct, hate speech can cause other violence toward the group being hated which is unconstitutional. Other scholars believe that freedom of speech should be less limited like Geoffrey Stone. Stone, a constitutional law scholar, emphasizes the instrumental value of free speech for democratic governance. He argues that allowing a wide range of speech fosters public deliberation, encourages the discovery of truth, and facilitates social and political progress. Stone believes that even speech that is offensive or disagreeable should generally be protected.

Ultimately both sides are convincing but the more persuasive argument is that freedom of speech should be more limited. The reason freedom of speech should be more limited is because hate speech incites violence. Speech that promotes hatred or incites violence against individuals or groups can have harmful consequences for society. Limiting such speech aims to prevent the propagation of discrimination, hostility, and violence, which can threaten social cohesion and individuals’ well-being. Ultimately there isn’t one right answer, the specific limitations and their scope are often subject to debate, and finding the right balance between free expression and societal interests is an ongoing challenge.